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Description: John Solak has filed Class Action #22 against Apple for purposely slowing iPhones in the District Court of Northern California, San Jose. An additional four Class Action lawsuits are reportedly in-...

John Solak has filed Class Action #22 against Apple for purposely slowing iPhones in the District Court of Northern California, San Jose. An additional four Class Action lawsuits are reportedly in-the-works in Canada, South Korea, Australia and France but are not official at this point in time.

1 14. Rather than offering more information to its American consumers, Apple chose

2 instead to offer a bit more detail on its Chinese-language website after Chinese authorities announced

3 investigations of its iPhone products. In two messages dated December 1 and December 6, 2016,

4 Apple advised Chinese consumers that it had heard of a “limited number of reports of unexpected

5 shutdown with iPhones”; that it had investigated and “found a small number of iPhone 6s devices

6 made in September and October 2015 contained a battery component that was exposed to controlled

7 ambient air longer than it should have been before being assembled into battery packs; and that it

8 was “replacing batteries in affected devices” worldwide.8

9 15. Apple also revealed to its Chinese customers that “[a] small number of customers

10 outside of the affected range have also reported an unexpected shutdown.”9 It told them it was

11 gathering more information on the problem. And it told them:

12 We also want our customers to know that an iPhone is actually designed to shut down
automatically under certain conditions, such as extremely cold temperature. To an
13
iPhone user, some of these shutdowns might seem unexpected, but they are designed
14 to protect the device’s electronics from low voltage.10

15 It also told that while it was looking for other factors that could “cause an iPhone to shut down

16 unexpectedly,” it had not yet found any.11

17 16. Fast forward to December 2017. Reports surfaced on December 18, 2017, that a

18 Primate Labs researcher, John Poole, had found evidence that Apple had embedded performance-

19 degrading features into certain iOS updates, likely as a means to prevent shutdowns of Affected

20 Phones.12 Mr. Poole’s research was spurred by a post the week before from a Reddit poster,

21 Teckfire, which stated in part: “From what I can tell, Apple slows down phones when their battery

22 gets too low, so you can still have a full days charge. This also means your phone might be very slow

1 for no discernible reason.”13 Later, 9TO5Mac reported that “Developer Guilherme Rambo has

2 discovered the software system, powerd (short for power daemon), that Apple put in place in iOS

3 10.2.1. powerd controls CPU/GPU speed and power. It also responds to thermal pressure and helps

4 iPhones from catching fire.”14 Mr. Rambo’s Twitter post was dated December 18, 2017, the same as

5 Mr. Poole’s report.15

6 17. All of this reporting caused Apple to acknowledge—sort of—that it had embedded a

7 throttling feature into two iOS updates. As it stated to TechCrunch on December 20, 2017:

8 Our goal is to deliver the best experience for customers, which includes overall performance
9 and prolonging the life of their devices. Lithium-ion batteries become less capable of
supplying peak current demands when in cold conditions, have a low battery charge or as
10 they age over time, which can result in the device unexpectedly shutting down to protect its
electronic components.
11
Last year we released a feature for iPhone 6, iPhone 6s and iPhone SE to smooth out the
12 instantaneous peaks only when needed to prevent the device from unexpectedly shutting
13 down during these conditions. We’ve now extended that feature to iPhone 7 with iOS 11.2,
and plan to add support for other products in the future.16
14
18. This acknowledgment, of course, caused much gnashing of teeth among Apple
15
consumers. So about a week later, Apple published an apology letter further acknowledging and
16
explaining its actions.17 As the defendant blandly put it:
17

18 About a year ago in iOS 10.2.1, we delivered a software update that improves power
management during peak workloads to avoid unexpected shutdowns on iPhone 6, iPhone 6
19 Plus, iPhone 6s, iPhone 6s Plus, and iPhone SE. With the update, iPhone dynamically
manages the maximum performance of some system components when needed to prevent a
20
shutdown. While these changes may go unnoticed, in some cases users may experience
21 longer launch times for apps and other reductions in performance.

1 19. In a nutshell, then, Apple admitted that it had instituted performance throttling on

2 Affected Phones. Its stated reason was to prevent shutdowns when a battery’s voltage fell to a

3 certain level under three circumstances: “[w]ith a low battery state of charge, a higher chemical age,

4 or colder temperatures.”18 Implicitly, it also admitted that it had not asked permission from its

5 customers to do this, nor had it informed them previously of exactly what it had done.

6 20. Also on December 28, 2017, in its “iPhone Battery and Performance” paper, Apple

7 identified seven ways in which its so-called and hidden “power management” could affect

8 performance of the phones on which it was installed.19

9 21. Coupled with these explanations and apologies, Apple announced that it would

10 “reduc[e] the price of an out-of-warranty iPhone battery replacement by $50—from $79 to $29—for

11 anyone with an iPhone 5 or later whose battery needs to be replaced” through the end of 2018.20

12 Importantly, Apple acknowledged for the first time in its apology letter that replacing an Affected

13 Phone’s “chemically aged” battery would do away with the voltage issues that would cause the

14 performance throttling to occur (unless the phone were used in non-standard conditions).21

15 22. Apple also stated that it was working on an iOS software update, to be issued in early

16 2018, “with new features that give users more visibility into the health of their iPhone’s battery, so

17 they can see for themselves if its conditions is affecting performance.”22 This is a further admission

18 that Apple had not given iPhone customers key information as to what was causing the performance

19
18
See https://support.apple.com/en-us/HT208387 (last accessed Jan. 4, 2018). This is an article
20 entitled “iPhone Battery and Performance” that Apple issued on December 28, 2017,
contemporaneously with its apology letter.
21 19
See id.
20
22 See https://www.apple.com/iphone-battery-and-performance/. Later, at least according to
certain press reports, it began allowing this discount for all such iPhone battery replacements—not
23 only for those phones “whose battery needs to be replaced” according to its own testing. (See, e.g.,
https://techcrunch.com/2018/01/02/you-can-get-that-29-battery-replacement-regardless-of-your-
24 iphones-health/ (last accessed Jan. 4, 2018).) But its official offer remains unchanged as of the date
of this complaint.
25 21
See https://www.apple.com/iphone-battery-and-performance/ (“Of course, when a chemically
aged battery is replaced with a new one, iPhone performance returns to normal when operated in
26 standard conditions.”). Evidently this means in “a low state of charge” or “in a cold temperature
environment.” See https://support.apple.com/en-us/HT208387.
27
22
See https://www.apple.com/iphone-battery-and-performance/.
28
CLASS ACTION COMPLAINT -7-
Case No. 5:18-cv-123
000700-11 555555 V1
Case 5:18-cv-00123 Document 1 Filed 01/05/18 Page 10 of 22

1 degradations that so many of them, including the plaintiff, were experiencing due to its battery issues

2 and its decision to throttle performance in order to prevent shutdowns.

3 23. Apple’s subterfuge in installing throttling software, and its lack of candor until forced

4 to explain itself by press reports and customer uproar, undoubtedly resulted in many sales and

5 purchases of new iPhones due to consumers’ belief—and Apple sales representatives’ urgings—that

6 their phones were essentially obsolete, hence the degradations of performance.23 And, no doubt,

7 many owners of Affected Phones bought batteries at $79 while fishing in the dark for a solution to

8 their performance issues. Plaintiff considered both of these options before Apple finally admitted

9 what was actually happening with his phone, and why.

10 24. Whether Apple had good reason to install performance-throttling software on certain

6 All U.S. persons or entities who own or owned an iPhone 6, iPhone 6 Plus, iPhone 6s,
7 iPhone 6s Plus, iPhone SE, iPhone 7, or iPhone 7 Plus, and who installed iOS 10.2.1
or 11.2 on his, her, or its iPhone.
8
28. Excluded from the proposed class are Apple, its employees, officers, directors, legal
9
representatives, heirs, successors, subsidiaries and affiliates, and the judicial officers and their
10
immediate family members and associated court staff assigned to this case, as well as all persons
11
who make a timely election to be excluded from the proposed classes.
12
29. Certification of plaintiff’s claims for classwide treatment is appropriate because
13
plaintiff can prove the elements of his claims on a classwide basis using the same evidence as would
14
be used to prove those elements in individual actions alleging the same claims.
15
30. This action meets all applicable standards of Fed. R. Civ. P. 23 for class certification.
16
More specifically, plaintiff can demonstrate:
17
31. Numerosity. The members of the proposed class are so numerous and geographically
18
dispersed that individual joinder of all proposed class members is impracticable. See Fed. R. Civ. P.
19
23(a)(1). While plaintiff believes that that there are hundreds of thousands, if not millions, of
20
25
What’s more, blazing fast performance is a feature that Apple regularly touts when marketing
21 its devices. See, e.g., https://web.archive.org/web/20141001022732/http://www.apple.com/iphone-
6/technology (“The all-new A8 chip is our fastest yet. Its CPU and graphics performance are faster
22 than on the A7 chip, even while powering a larger display and incredible new features. And because
it’s designed to be so power efficient, the A8 chip can sustain higher performance—so you can play
23 graphics-intensive games or enjoy video at higher frame rates for longer than ever.”) (last accessed
Jan. 2, 2018); https://web.archive.org/web/20150926133013/http://www.apple.com:80/iphone-
24 6s/technology/ (“The A9 chip brings a new level of performance and efficiency to iPhone 6s. Not
only a faster experience, but a better one. . . . It sits at the cutting edge of mobile chips, improving
25 overall CPU performance by up to 70 percent compared to the previous generation. . . .”) (last
accessed Jan. 2, 2018).
26
Plaintiff recalls seeing similar if not identical advertising, and being impressed by it, prior to
27 purchasing his iPhone 6. He looked forward to enjoying that power and speed unimpeded by
performance throttling.
28
CLASS ACTION COMPLAINT -9-
Case No. 5:18-cv-123
000700-11 555555 V1
Case 5:18-cv-00123 Document 1 Filed 01/05/18 Page 12 of 22

1 members of the proposed class,26 the precise number of class members is unknown to them, but may

2 be ascertained from Apple’s books and records. Class members may be notified of the pendency of

3 this action by recognized, court-approved notice dissemination methods, which may include U.S.

4 Mail, electronic mail, Internet postings, and/or published notice.

5 32. Commonality and Predominance. This action involves common questions of law and

1 class members could afford individual litigation, the court system could not. Individualized

2 litigation creates a potential for inconsistent or contradictory judgments, and it increases the delay

3 and expense to all parties and the court system. By contrast, the class action device presents far

4 fewer management difficulties and provides the benefits of single adjudication, economy of scale,

5 and comprehensive supervision by a single court. See Fed. R. Civ. P. 23(b)(3).

6 VII. CAUSES OF ACTION
7 COUNT I
8 TRESPASS TO CHATTELS
9
37. Plaintiff realleges and incorporates by reference all paragraphs as though fully set
10
forth herein.
11
38. Plaintiff and members of the proposed class owned or own one or more of the
12
following iPhones: the iPhone 6, iPhone 6 Plus, iPhone 6s, iPhone 6s Plus, iPhone SE, iPhone 7, or
13
iPhone 7 Plus. At Apple’s urging, plaintiff and members of the proposed class installed either iOS
14
10.2.1, 11.2, or both, on their iPhones, without knowing that Apple had secretly included
15
performance-throttling features in each of those iOS updates. Because they were unaware of the
16
inclusion of this secret feature, they did not consent to installation of it on their devices.
17
39. Defendant Apple intentionally interfered with, and committed trespass to, plaintiff’s
18
and putative class members’ property, i.e., their iPhones, by installing performance-throttling
19
software on their phones without their knowledge. To reiterate: because Apple did not inform them
20
of, or seek their consent to installation of, performance-throttling software when presenting them
21
with the iOS 10.2.1 or 11.2 updates, or both of them, plaintiff and the putative class members did not
22
consent to Apple’s interference.
23
40. Apple’s interference was the actual, direct, and proximate cause of injury to the
24
plaintiff and his fellow putative class members because it actually and substantially slowed, and
25
therefore harmed, the functioning of the devices in at least the seven ways that Apple has now
26

A. Unfair prong
1
47. Apple’s conduct violates the unfair prong of the UCL in at least the following ways:
2
a. Apple systematically installed performance-throttling software on Affected
3
Phones without the knowledge or consent of plaintiff or putative class
4
members. By doing this, Apple deprived these iPhone owners of the
5
performance which Apple promised them but which it consciously degraded
6
under at least the circumstances it has admitted;
7
b. Apple’s subterfuge outweighs any potential benefits from its unilateral action;
8
and
9
c. Apple chose an unfair, and therefore unlawful, course of action when other,
10
lawful courses were available. For example, it could and should have given
11
plaintiff and putative class members the right to opt in and out of the throttling
12
feature at their election.
13
48. Apple also behaved as alleged in order to gain unfair commercial advantage over its
14
competitors, even if it meant disregarding the rights and expectations of its customers. Apple’s
15
actions reveal that it wanted to deal with its iPhone shutdown issue as quietly as possible, so as not to
16
injure sales or its reputation. It not only withheld critical information from plaintiff and the putative
17
class, but also from its competitors and the marketplace at large, all to its unfair competitive
18
advantage.
19
49. Apple’s behavior as alleged herein, which emanated from its headquarters in
20
California, caused harm to the plaintiff and putative class as alleged in this complaint. Had plaintiff
21
and putative class members known that Apple would engage in this unfair behavior, they would not
22
have purchased their iPhones, or they would not have purchased these Affected Phones at the prices
23
they paid (i.e., they would only have purchased them at lesser prices), and/or they would have
24
purchased less expensive phones.
25
50. Accordingly, plaintiff and other putative class members have suffered injury in fact,
26
including lost money or property, as a result of Apple’s unfair behavior.
27

1 also were done in order to gain commercial advantage over its competitors, and to drive consumers

2 away from consideration of competitor devices as alleged in this complaint. Apple’s conduct

3 warrants an assessment of punitive damages in an amount sufficient to deter such conduct in the

4 future, which amount is to be determined according to proof.

5 COUNT IV
6 QUANTUM MERUIT TO RECOVER SUMS RECEIVED BY UNJUST ENRICHMENT
7
70. Plaintiff realleges and incorporates by reference all paragraphs as though fully set
8
forth herein.
9
71. Plaintiff brings this claim on behalf of himself and the proposed class.
10
72. In the event that no adequate legal remedy is available, plaintiff brings this count in
11
quasi contract on his behalf and that of his fellow putative class members, in order to pursue
12
restitution based on Apple’s unjust enrichment.
13
73. Apple has unjustly received and retained monetary benefits from plaintiff and the
14
class, and inequity has resulted.
15
74. More specifically, Apple sold plaintiff and putative class members iPhones marketed
16
to have a premium level of performance. These iPhones’ prices reflected their promised premium
17
performance. Once Apple consciously throttled their performance as alleged herein, including by
18
way of false inducements to get them to agree to install the iOS updates at issue, the value of these
19
devices to plaintiff and the proposed class dropped. Yet Apple has retained all the funds they paid.
20
Further, Apple has induced sales of new iPhones and batteries due to its throttling that putative class
21
members mis-interpreted as obsolescence. Again, Apple has retained these monetary benefits that it
22
obtained as a consequence of the wrongful practices identified in this complaint.
23
75. Thus, all proposed class members conferred a benefit on Apple.
24
76. It is inequitable under the circumstances described in this complaint for Apple to
25
retain these benefits.
26
77. Plaintiff and the class were not aware of the true facts about the Affected Phones and
27
did not benefit from Apple’s conduct.
28
CLASS ACTION COMPLAINT - 18 -
Case No. 5:18-cv-123
000700-11 555555 V1
Case 5:18-cv-00123 Document 1 Filed 01/05/18 Page 21 of 22

1 78. Apple, on the other hand, knowingly accepted, and has retained, the benefits of its

2 unjust conduct.

3 79. As a result of Apple’s conduct, the sum of its unjust enrichment should be disgorged

4 as restitution under the theory of quantum meruit or otherwise, in amounts according to proof.

5 VIII. REQUEST FOR RELIEF
6 WHEREFORE, plaintiff respectfully requests that the Court enter judgment in his favor and

7 that of the proposed class, and against defendant, as follows:

8 A. Certification of the proposed nationwide class as requested, including appointment of